Legal Opinion
Rainbow Hospitality Management, Inc. v. Mesch Engineering, P. C.
Appellate Division of the Supreme Court of the State of New York
Decided March 29, 2000No. Appeal No. 2PublishedCited by 3 opinions
1Opinion of the Court
—Order unanimously affirmed with costs. Memorandum: Supreme Court properly granted defendants’ motions to dismiss the amended complaint during the trial (see, CPLR 4401). We reject plaintiffs contention that the motions were based upon plaintiffs lack of legal capacity to sue (see, CPLR 3211 [a] [3]) and that defendants waived that defense by failing to raise it in their answers or by preanswer motion (see, CPLR 3211 [e]). “There is a difference between capacity to sue, which gives the right to come into court, and possession of a cause of action, which gives the right to relief in court”…
2Cases cited9 opinions
- Burdett Radiology Consultants, P. C. v. Samaritan HospitalAppellate Division of the Supreme Court of the State of New York · 1990
- Kittinger v. Churchill Evangelistic Ass'nAppellate Division of the Supreme Court of the State of New York · 1933
- Schel v. RothAppellate Division of the Supreme Court of the State of New York · 1997
- Wells v. MerrillAppellate Division of the Supreme Court of the State of New York · 1923
- Herman v. GreenbergAppellate Division of the Supreme Court of the State of New York · 1995
4 more not listed; retrieve them via the Exa API.
3Cited by3 opinions
- GMAC Mtge., LLC v. CoombsAppellate Division of the Supreme Court of the State of New York · 2020
- Edwards v. Siegel, Kelleher & KahnAppellate Division of the Supreme Court of the State of New York · 2006
- C&D Rodriguez General Contracting, Inc. v. GatellAppellate Division of the Supreme Court of the State of New York · 2005